England and Wales Court of Appeal (Criminal Division) Decisions

James, R. v [2002] EWCA Crim 1119 (17th May, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE BEAUMONT QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 May 2002

Lord Justice Rix:

1. This appeal against conviction arises from an established conspiracy to defraud. The appeal is that of David John James who was convicted upon a retrial. The question for the jury at both trial and retrial was whether James was a party to the conspiracy. At the retrial they found that he was. The question on appeal is whether that conviction is unsafe. Three grounds are put forward on his behalf to say that it is unsafe. The first is that the verdict was inconsistent with the previous acquittals at the earlier trial of two co-defendants, Johnston and Bradbury. The second is that it was unfair to allow another co-defendant at the earlier trial, Keeler, who was then convicted, to give evidence against James at his retrial without giving full disclosure of privileged material. The third is that there has been such delay overall in dealing with the prosecution as to amount to a breach of the requirement of article 6(1) of the European Convention of Human Rights (the “Convention”).
2. The conspiracy alleged at the first trial was concerned with the affairs of a group of companies known as Harrovian. The principals of Harrovian were W M (“Billy”) Johnston and his close associate Frank Bradbury. In the 1980s Johnston and Bradbury had built up a successful business operation based upon the provision of bed and breakfast accommodation for homeless families in Harrow. From there the business expanded into commercial property development. Harrovian acquired buildings around the site of the Harrow and Wealdstone football club ground and planned to participate in a redevelopment of the whole area. They were well regarded by the local business community and local banks, and their redevelopment plans were pronounced sound by a firm of nationally recognised surveyors. At one time their bed and breakfast business had been very profitable, but as the plans got under way and their buildings were demolished to make way for the rebuilding, Harrovian’s income dried up. By March 1990 only 5% of Harrovian’s income was from bed and breakfast hostels and the rest was financed from borrowings.
3. The prosecution alleged that over the period from 1 January 1989 to 31 August 1990 Harrovian was at the centre of a mortgage fraud designed to extract borrowings from banks and building societies on false bases in order to support the financial demands of Harrovian’s redevelopment scheme. Properties were constantly mortgaged and remortgaged, often at increasingly higher valuations, and often to more than one lender. Security which was promised was not completed. Residential properties which were apparently bought as homes to live in by members of Johnston’s family, such as his three sisters, or by employees such as James himself, were being used to obtain domestic mortgage finance on a nominee purchase basis at inflated valuations in order to swell Harrovian’s cash flow. Over the relevant period some £500 million went through the client accounts operated on Harrovian’s behalf by its solicitor, Guy Lucas. When the music stopped, serious losses were suffered.
4. James had joined Barclays Bank in 1975. In 1987 he was appointed corporate finance manager at Barclays’ Harrow branch, where Harrovian had its accounts. He looked after those accounts. In August 1989 he left Barclays and joined Harrovian. At first his role, according to him, was mainly concerned with putting a package together for the financing of the redevelopment. According to Paul Keeler, however, James’ role was to assist him in dealing with Harrovian’s lenders and in liaising with Harrovian’s solicitor, Lucas, in relation to borrowings generally. During the period March to August 1990, when Keeler left Harrovian, James succeeded to Keeler’s role as effectively finance director. Keeler returned in August 1990.
5. The valuer used for many transactions was Andrew Trowbridge. He had been a partner in a firm of surveyors in Pinner, Middlesex, until it was taken over in September 1988 by a subsidiary of Abbey National. The prosecution alleged that he had consistently over-valued properties concerned and was a party to the conspiracy.
6. These matters came to the attention of the police as a result of Lucas, who surrendered himself to the Metropolitan Police Fraud Squad on 3 April 1991.
7. These allegations gave rise to one main phase of the indictments which arose from Harrovian’s affairs, and that phase was known as Harrovian Properties. Another main phase covered by separate indictments was known as Harrovian Leisure. It was decided to try the Harrovian Properties indictments first.
8. Thus between 14 July 1997 and 13 March 1998 the first Harrovian Properties trial involving James took place before HH Judge Beaumont. James was indicted together with Johnson, Bradbury, Keeler, Lucas, Trowbridge and others. Johnson, Bradbury and Trowbridge were acquitted. Keeler, however, was convicted. As for James, as stated above, the jury could not reach a verdict. The judge ruled, against objections by his counsel, that he should be retried.
9. At the outset of the trial Lucas changed his plea to guilty to several counts including two of conspiracy to defraud (on both the Properties and the Leisure indictments) and on 17 April 1998 was sentenced to seven years imprisonment.
10. On 22 September 1998 one of the “nominee” purchasers, John Campbell, had been convicted in a separate trial of obtaining services by deception (a loan of £550,000) in respect of a property known as Grove End, one of the properties in respect of which James stood accused of conspiring.
11. When, therefore, on 15 March 1999 the retrial of James began, again before Judge Beaumont at the Central Criminal Court, Keeler had been convicted, and Lucas had pleaded guilty, on the conspiracy indictment, and Campbell had been convicted of fraud, albeit not of conspiracy, in relation to one of the relevant transactions
12. The particulars of the indictment on which James was retried stated that he had conspired with Lucas and Keeler, as well as Johnston’s three sisters and their husbands, viz the Najeras, the Milsoms and the O’Sheas (who had yet to be tried), and Campbell (among others), but not Johnson, Bradbury or Trowbridge. Subsequently, the three sisters (but not their husbands) were to plead guilty to counts of obtaining property by deception and/or false accounting in respect of other relevant property transactions listed in the particulars charged against James.
13. The question therefore arose on James’ retrial as to how the acquittals of Johnson, Bradbury and Trowbridge, and the convictions of Lucas, Keeler and Campbell were to be put before the jury. The convictions were dealt with by admissions. Thus James admitted

“(a) that between the dates on the indictment there existed a conspiracy to defraud the lending institutions in the terms set out in the indictment.

(b) This conspiracy was between at least Guy Robin Lucas and Paul Wilson Keeler. Guy Robin Lucas has pleaded guilty to a conspiracy to defraud between the dates on the indictment. Paul Wilson Keeler has been found guilty of the same.

(c) The Crown allege that David Gransby, Robert Lane, Valerie Milsom, Martin Milsom, Rosaleen Najera, Jose Najera, Lee O’Shea, Beryl O’Shea, John Campbell, and others were parties to the conspiracy.

(d) David Gransby is outside the jurisdiction and is not available to be tried. Robert Lane is deceased.

(e) John Campbell has been found guilty of Obtaining Services by Deception…

(f) Valerie Milsom, Martin Milsom, Rosaleen Najera, Jose Najera, Lee O’Shea, Beryl O’Shea remain to be tried on specific charges.”

14. Moreover, the Crown admitted that Johnston, Bradbury and Trowbridge “were not parties to such a conspiracy”.
15. This latter admission by the Crown was not arrived at by a straightforward route. When, at the end of the first trial, the question of retrying James was debated before the judge, the Crown reserved the right to say at any retrial that the acquitted co-defendants had been co-conspirators (see Hui Chi-ming v. The Queen [1992] 1 AC 34 at 42H/43A per Lord Lowry, “because the verdict reached by a different jury (whether on the same or different evidence) in the earlier trial was irrelevant and amounted to no more than evidence of the opinion of that jury”. By January 1999, however, the Crown had decided to remain loyal to the acquittals in the first trial and thus to present the retrial on the basis that the acquitted co-defendants were not parties to the conspiracy. This change of heart caused James’ representatives to make an application to the judge at the outset of the retrial to the effect that it amounted to a manipulation of due process and should not be permitted, since it amounted to a complete inversion of the fraud which hitherto the Crown had sought to prove. However, the judge rejected that submission, saying that the Crown’s case as particularised on the indictment in terms of what James was alleged to have done and with whom he was alleged to have done it and why remained as before. As at that time, however, the question of whether or not the acquittals would or should be put before the jury at the retrial was left over, as being essentially “in the defence court”. But the judge ruled that the Crown could not advance a case inconsistent with the acquittals and recognised that that would cause certain practical difficulties to the prosecution.
16. One of the practical difficulties which the judge may have had in mind has been the subject matter of submissions to this court on behalf of James by Mr Andrew Trollope QC. Thus Mr Trollope has emphasised the disparity of the financial interest which at any rate Johnston and Bradbury (not Trowbridge) had, as Harrovian’s principals, in the success of Harrovian and its redevelopment scheme, as compared with James. “Cui bono?” asked Cicero, and Mr Trollope has pointed to the fact that all the finance obtained from the impugned transactions went into Harrovian’s accounts, that Johnston and Bradbury drove luxury cars and obtained large sums out of the business; whereas James was an employee on a salary. We will revert to such considerations below.
17. The question of whether the acquittals, ie of whether the fact that Johnston, Bradbury and Trowbridge had stood trial and been acquitted, should be put before the jury was revisited on 26 April 1999 when the judge ruled on Mr Trollope’s application to admit the acquittals of Johnston and Bradbury. The prosecution opposed that application, but the judge allowed it. There was no similar application to admit the acquittal of Trowbridge. The reason for that was explored during the hearing of this appeal. Mr Trollope accepted that that was a tactical decision taken in the interests of the defence. It was felt that the jury should not know that Mr Trowbridge had ever had to stand trial as being an alleged co-conspirator. Of course it was not alleged at James’ retrial that he had conspired with Trowbridge.
18. It is unnecessary for us to set out the detail of the prosecution’s or the defence’s case on James’ retrial. It is sufficient to state the general lines of each, and to sample the detail by reference to three transactions.
19. The prosecution case was that the business which James joined in August 1989 was not an intrinsically dishonest business, and that the redevelopment scheme was regarded as sound; but at the relevant time it lacked income. Certainly from March 1990 onwards it rested on a mound of revolving debt. In those circumstances a lot of lies were told by a lot of people playing different parts at different times for different purposes, but all directed to a common purpose: to keep the existing loans in place when the banks got restive and to find new loans. So properties owned by Johnston were double-mortgaged, used at the same time to obtain separate loans from different lenders. There were variations on the theme, eg the promise to lenders of the sale of a property which had already been sold; the fictitious sales of Johnston owned properties at inflated or optimistic prices to Johnston family members, such as the sisters, or to friends, such as Campbell, or to employees. Then when the properties which were (or had been) owned had for these purposes been exhausted, new ones were acquired. As the search for new properties broadened, a scheme, known as “Gracious Homes of England” was born, a “scam”, whereby houses were bought in nominee names of individuals, such as James himself, at one price, which was then inflated and used for the purpose of obtaining a mortgage. Although the company which was to run the “Gracious Homes” scheme was never incorporated, James was to become a director of it. To carry off these purposes required a dishonest solicitor, Lucas, and a dishonest manager at the heart of the business, such as Keeler and James. In effect if not in title they were respectively finance directors of Harrovian, James succeeding to Keeler’s role in March 1990. The case against James was that he was the person to whom Lucas, the solicitor, sent the documents for signature or execution, and from whom Lucas obtained instructions. James, said the prosecution, was at the centre: he saw documents of sale at one price coming into his office and other, false, documents going out to the lenders at another, inflated, price. He was the only administrator at the office. His signatures were on the papers. He participated personally in some of the transactions, as a buyer and borrower, even though the proceeds went into Harrovian’s accounts. He stood to benefit from the survival of Harrovian, not perhaps as much as others, but enough to give motive to his role: thus he trebled his salary when he moved to Harrovian from Barclays, and he bought an expensive new house whose mortgage was paid by Harrovian. He had, alleged the Crown, a very real personal stake in Harrovian’s survival.
20. James’ defence, on the other hand, was as follows. He denied being part of any conspiracy, although he accepted that there was a conspiracy and that Lucas and Keeler were parties to it. He was recruited to improve administration and put together a finance package for the redevelopment scheme. It was only shortly before Keeler’s departure in March 1990 that he began to deal with the banks for the first time. Transactions which might look suspicious when carefully assembled and presented by the prosecution could be explained innocently as due to genuine forgetfulness, oversight, a failure to connect. He was acting honestly, in ignorance or confusion. He had less connection with the lenders than the prosecution alleged. He was not a member of the Johnston family or the inner circle, he made no strategic decisions, he did not control the bank accounts. He was entitled to trust in the honesty of a business which the banks trusted. He acted for the principals of that business, in many cases in respect of Johnston’s own properties, or in respect of mortgage applications made by members of Johnston’s own family or circle of friends. He had no reason to think that any dishonesty was involved. The Gracious Homes scheme was genuine, an investment opportunity capitalising on the fall in property values in 1989/1990, all centred on Harrovian’s office. Critical signatures in his name were not genuine. He was a man of good character, with an exemplary career in banking behind him.
21. The nature of these respective cases can be seen in close-up by reference to some of the detailed evidence relating to three of the ten or so properties which were the subject matter of transactions investigated at the retrial.
22. Bylands House. This was a property which Johnston had bought in September 1988 for £700,000. It came to form part of security undertaken by Lucas to be held to Lloyds Bank’s order to support a facility of £4 million. On 8 June 1990 James visited the bank and at that meeting and/or in correspondence at about the same time it was clarified for his benefit that Bylands House was amongst the securities which the bank was relying on to support its facility. On 12 June an application was made in James’ name to the Guardian Building Society for a loan of £550,000 in order to buy Bylands House. That application was supported by a letter from Gransby, writing as chairman of Harrovian, stating that James’ appointment as financial director of Harrovian took effect from 1 April 1990 at a salary of £200,000. There was evidence from a mortgage broker, Lawson, that someone who introduced himself as David James came to see him, recommended by Campbell, concerning a loan for the purchase of Bylands House. The application form was signed in Lawson’s presence, and he forwarded it to Guardian, who approved the loan and sent it by cheque to Lucas. James denied all knowledge of this application and of any meeting with Lawson. A handwriting expert gave evidence to the effect that the signature on the application form corresponded closely to James’ known signature, and its fluency and other features led her to the opinion that it was his genuine signature, although since only a photocopy was available it was not possible to exclude the possibility of a skilful copy. In due course the loan account fell into arrears, and Guardian wrote to James c/o Lucas for payment. A company cheque for some £21,000 odd was sent to Guardian. It was returned under cover of a letter from Guardian dated 30 November 1990, because the bank on which it was drawn would not pay it without a second signature. That letter is endorsed in manuscript: “Sincere apologies for the error. Mr Johnston has now added his signature to the cheque” and a signature “David James.” James said that the handwriting was his, although he was less sure of the signature. He had no idea how his writing got there, he had no recollection of the letter or any explanation for it. However, for separate reasons which it is unnecessary to detail here Lawson’s dealings with Guardian were clouded with suspicion.
23. The judge therefore directed the jury:

“You will want to proceed with the very greatest care before acting on Mr Lawson’s account to the detriment of the defendant, Mr James…If, however, you are in doubt about Miss Float’s opinions as to the signatures, and this further correspondence [about the £21,000 cheque] does not in your judgment provide sufficient independent support for Mr Lawson’s assertion that the Mr James who made the application to the Guardian for the mortgage to buy Bylands House was the person who signed it in his presence, and that person is the defendant Mr James, then Mr Lawson’s evidence stands alone, and you well may think it prudent in those circumstances, in the light of Mr Webster’s evidence about Mr Lawson, to jettison this transaction altogether as providing material from which Mr James’ guilt as a knowing participant in a conspiracy to defraud lenders can be safely inferred. That is a matter for you.”

24. Thiseld. This property was bought by Johnston in March 1989 for £235,000. It was in Hampshire. It was another property relied on by Lloyds Bank to support its facility, as James established in his contacts with the bank in June 1990. On 24 August 1990 it was sold for £160,000 in a genuine transaction to a couple called Powell. In July James was asked to deal with the purchasers’ enquiries concerning this sale to them. However, just a few months earlier, on 7 February 1990 Johnston’s sister Mrs Milsom and her husband had applied for a mortgage in the sum of £280,000 from Barclays Bank to buy the same property. Their application form was filled in by James. The mortgage loan was advanced, and the bank’s correspondence clearly showed that it believed that the Milsoms were living at Thiseld, but they in fact had their own home elsewhere. Mr James was involved in correspondence with the bank concerning aspects of the sale, such as life insurance and a certificate of occupancy. So the same property which formed part of Lloyds’ security was used to obtain a further mortgage from Barclays. The question for the jury was how James could have confirmed that Thiseld was part of Lloyds’ security in June 1990 when he had only recently played a role in using it to obtain a mortgage for the Milsoms. James said that he did not connect these events with one another.
25. Green Farm. This was a farmhouse in Suffolk and an example of a Gracious Homes transaction. The transaction is set against the background of the purchase by James of a new family home in St Albans for £425,000. His offer was made on 2 April 1990, contracts were exchanged on 29 May 1990, and the 10% deposit was paid from the Harrovian client accounts held by Lucas. He financed the balance with a mortgage from the Nationwide when completion took place in June 1990. In August James completed on the sale of his old home, also in St Albans, for £110,000. At about the same time, however, he was also involved in the prospective purchase of Green Farm. Thus on 26 April 1990 Lucas, purportedly acting on James’ behalf, confirmed his offer for Green Farm at £225,000. Contracts were exchanged, and the deposit was paid from the Harrovian client accounts held by Lucas. A signed but undated conveyance bears a signature identified by the handwriting expert from an original document as a genuine signature of James. When completion did not take place, the deposit was forfeited, but the contract kept alive and interest paid.
26. In the meantime on 2 April 1990 Trowbridge had valued Green Farm at £900,000 in a letter addressed to Barclays Bank at its Harrow branch. That valuation was sent by James enclosed with his own letter to Barclays explaining that Green Farm was available to buy at £750,000 and that he and his family intended to move into it after certain works had been carried out. James also enclosed his application form for a mortgage of £600,000. Bradbury confirmed that James’ salary was in excess of £200,000. The application was approved, and the mortgage money advanced, paid into James’ current account and from there transferred into a Lucas client account. James signed a certificate of occupancy to the effect that Green Farm would be occupied by him and his wife. The manager of the Barclays branch gave evidence that he regarded it as a residential mortgage. A few weeks later, dated 25 April 1990 James signed a further application to a mortgage lender called Mortgage Services Ltd (“MSL”) for £500,000. This was stated to be for a re-mortgage replacing a short-term bank loan, and was on terms that the property was not to be used for business purposes or subject to tenancies but was to be occupied by the applicant. It was also supported by a valuation of £900,000 by Trowbridge. This loan was also drawn down, by payment to Lucas.
27. James said that he was acting as a mere nominee. Green Farm was to be one of the Gracious Homes transactions, with all borrowings ultimately consolidated into a single commercial account once the company had been set up. All this had been explained by a colleague (he thought Bradbury) to the lenders, who knew that the property was not intended as a personal residence for occupancy by him and his family. Moreover, he had no idea that the true price of Green Farm was £225,000 and thought that it was £750,000. He accepted that he did not earn in excess of £200,000 and could not afford to borrow £600,000, but said that the Barclays manager would have known that the figure of over £200,000 represented his true income as enhanced by the mortgage payments which Harrovian would be making on the Barclays loan. As for the MSL re-mortgage, he thought that that advance went to repay the Barclays loan. He never knew that the completion of Green Farm had never taken place.
28. The summing-up. No complaint is made of the judge’s summing-up. In many respects it was very favourable to James. We have already cited the example of the judge’s direction concerning the evidence of the broker Lawson in connection with the Bylands House transaction. The judge emphasised that the convictions of Lucas, Keeler and Campbell proved only that they had committed those offences, nobody else. As for the acquittals of Johnston and Bradbury, the judge told the jury that as the Crown had not sought to go behind the previous jury’s verdicts, those individuals could not be regarded as participants with James in the conspiracy alleged against him: on the contrary, the jury had to be satisfied that James had conspired with a named co-conspirator. Keeler gave evidence for the Crown against James, but the judge highlighted the defence’s complaints first, that for six years between arrest and conviction Keeler had told a story of innocence, and secondly, that as he had yet to be sentenced, he had an interest in saving his own skin which he could serve by helping the prosecution with false evidence against James. The judge therefore said this:

“What you have to do is to recognise the dangers and, in assessing Paul Keeler’s evidence, guard against them. How? The answer is simple to describe: it is by looking, before you rely on Mr Keeler’s evidence to convict the defendant David James, to make sure that in what Mr Keeler says Mr James did and/or knew, that Mr Keeler’s account of it is supported by independent evidence, that is to say coming from a source other than Mr Keeler, tending to confirm that what Mr Keeler is saying about Mr James is true.

“Again, as we look at the aspects of the evidence, later on this afternoon, on which Keeler’s account touches, that is a factor I will endeavour to help you with. But it is an aspect of this case that I ask you to bear in mind throughout all your considerations.”

29. We are now in a position to turn to the three issues raised on this appeal.

Inconsistent verdicts

30. The first issue raises the question whether the conviction of James at his retrial on the count of conspiracy is inconsistent with the acquittals of Johnston and Bradbury at the first trial, and must therefore be regarded as unsafe. Mr Trollope submits that that is so. He submits that it is impossible to think that James could have been conspiring to defraud the banks and building societies who lent monies which went to support Harrovian’s redevelopment plans, when the two principals of Harrovian were acquitted of any part in such a conspiracy. They were the real beneficiaries of Harrovian’s prosperity or survival, and if they were not guilty of conspiring to defraud the lenders, then the relatively junior James, who only came on the scene in August 1989, and who had so comparatively small a stake in the enterprise, could not possibly have been guilty of conspiracy. There could be no rational explanation for the guilt of James in the light of the innocence of Johnston and Bradbury. The verdicts were inexplicable; there was no material difference in the quality of the evidence against the two principals and James; the jury’s verdict therefore must be regarded as disclosing an impermissible process of reasoning. Therefore the conviction must be quashed as unsafe.
31. Mr Trollope highlighted four aspects of the facts as demonstrating the inconsistency he relied on. First, that all the money raised from the loan transactions investigated at trial went into Harrovian’s accounts, or else went to support the personal high living and expenses of Johnston and Bradbury. Secondly, that the majority of properties investigated at trial were owned by Johnston or Bradbury or bought in their names, and that no less than nineteen loans (for many of the properties supported more than one loan, sometimes successively but sometimes at the same time) were held in Johnston’s names and four in Bradbury’s. Thirdly, that not only was James a comparatively junior manager, an employee rather than a principal, but he only arrived on the scene once the alleged conspiracy had been running for some eight months (from the beginning of 1989), by which time many of the loans investigated at trial had been up and running; and it was not until about March 1990 that James took over from Keeler. Fourthly, that James had a limited involvement: only in the cases of Bylands House and Green Farm was he even purportedly involved as a buyer; and even then none of the loaned funds went to him; he was merely paid his salary and other benefits of his employment.
32. As for the law, Mr Trollope relied on the following authorities to seek to demonstrate that in the context of conspiracy the critical question is always that of inconsistency. Thus he submitted that even though sub-sections 5(8) and 5(9) of the Criminal Law Act 1977 reversed the previous common law rule (see DPP v. Shannon [1975] AC 717) that a person was entitled to be acquitted on a charge of conspiracy where his alleged co-conspirator was acquitted, nevertheless an exception was made for the case of inconsistency. Thus he emphasised the proviso at the end of sub-section 5(8):

“(8) The fact that the person or persons who, so far as appears from the indictment on which any person has been convicted of conspiracy, were the only other parties to the agreement on which his conviction was based have been acquitted of conspiracy by reference to that agreement (whether after being tried with the person convicted or separately) shall not be a ground for quashing the conviction unless under all the circumstances of the case his conviction is inconsistent with the acquittal of the other person or persons in question” [emphasis added].

33. In R v. Longman and Cribben (1981) 72 Cr App R 121 Lord Lane CJ considered the effect of that subsection in a case where two defendants were tried together charged with conspiring with each other and no one else. In such a case, the jury should be directed that they should consider the defendants separately and can convict one while acquitting the other only where the strength of the evidence against each is “markedly different”. But where the evidence is of equal weight against each and there is a “risk of inconsistent verdicts”, in the sense that a verdict of guilty in one case and not guilty in the other would be “to all intents and purposes, inexplicable and therefore inconsistent”, the judge should direct the jury that they should say either both guilty or both not guilty (at 125).
34. In R v. Ashton [1992] CLR 667 this court applied the guidance in R v. Longman and held that because there were important differences between the cases of two defendants tried together, therefore the trial judge had been wrong to direct the jury on the basis of either both guilty or both not guilty.
35. In R v. Brewer and Jones [2001] EWCA Crim 2141 (26 September 2001, unreported) this court quashed the convictions of Brewer and Jones in the light of the jury’s failure to agree a verdict in respect of a third man, Jittlar. The three of them had been charged in a single trial (with a fourth co-defendant, who was also convicted) with assault occasioning actual bodily harm. There was no charge of conspiracy, but the prosecution’s case was that the four, who were prison officers, had deliberately set out by agreement to carry out a punishment beating on a prisoner. The evidence was that the first violence involved Jittlar, and the critical question therefore was whether the violence came from him or, as the defence case had it, was inflicted on him. As the Vice President Kennedy LJ put it (at para 14):

“If the jury could not agree as to the guilt of Jittlar, how could they convict any of the others and how could they be satisfied as to the guilt of Brewer and Jones…?”

He concluded (at para 16):

“But here the position of Jittlar was integral to the prosecution case as it was presented. He was, as Morland J put it at one stage during the argument, the keystone. So this is not really a case of inconsistent verdicts but rather of verdicts which to our minds disclose an impermissible process of reasoning in relation to this indictment.”

36. We do not find much assistance from cases which are concerned with the exercise of the judge’s discretion as to how to direct a jury in a case where two (or more) co-defendants are tried in a single trial on a charge of conspiracy with one another. In such circumstances the judge has to mould his direction to the evidence in a way which is fair to all the defendants. He will do so by asking himself whether the evidence in the case against each of them is such that the guilt or innocence of each stands or falls together. However, the provisions of section 5 of the 1977 Act explicitly recognise that a person may be properly convicted of conspiracy (whether in the same trial or a separate trial) even though the only other person with whom he is alleged to have conspired has been acquitted. In Longman and Cribben at 125 Lord Lane explained this apparent illogicality as follows:

“Where the strength of the evidence against each is markedly different, usually (as in the instant case) because A has confessed and B has not, he should then go on to explain that because there is a difference in the evidence against each, the jury may come to the conclusion that the prosecution have proved beyond doubt against A that A conspired with B, but have not proved against B that any such conspiracy existed.

“That may appear to be illogical, but it is the necessary result of the rules of evidence which are designed to ensure fairness. If, therefore, the jury are satisfied that A conspired with B but are not satisfied that there is adequate evidence of B’s guilt, they should convict A and acquit B. We can see no reason why the jury should not understand such a direction.”

37. In such circumstances logic may have to give way to fairness. Of course there is an apparent illogicality in a conspiracy which exists in the case of one defendant but not (ie is not proved to the required degree) in the case of the only other defendant who is charged as a co-conspirator. But fairness demands that a defendant against whom there is a weaker case should not be dragged down by the stronger case against his co-defendant, as may occur where a “both guilty or both not guilty” direction is given. That was the reason for the quashing of the conviction in the case of Longman.
38. In the present case, however, we are not concerned with whether the direction of the judge was fair or not. There is in fact no complaint about the directions of the judge. We are concerned with whether James’ conviction is unsafe. Mr Trollope might have submitted that James should never have been retried, and that his retrial was an abuse of process, on the ground that, in the light of the acquittals of Johnston and Bradbury, any conviction on retrial would have been bound to be inconsistent and unsafe. In the event, however, although that had been an original ground of appeal, and although some of Mr Trollope’s arguments veered towards that ground, his submission was rather that the conviction was inconsistent and unsafe. As it is, we are not aware that an argument of abuse of process was ever advanced on James’ behalf to prevent his retrial. There was discussion at the end of the first trial as to whether James should be retried or not, but we have not been shown the argument or ruling of the judge on that. It seems, however, that at that stage the prosecution reserved the right to say that Johnston and Bradbury had, despite their acquittals, been co-conspirators. There was therefore argument at the beginning of the retrial (see para 15 above) as to whether the prosecution should be permitted to advance a case on the new basis, reflecting their acquittals, that Johnston and Bradbury were not said to be party to the conspiracy alleged. When the judge ruled that the prosecution could proceed in that way, there was no application that in such circumstances the retrial was an abuse because it could only end in either an acquittal or an unsafe, because inconsistent, conviction.
39. However, this is not the typical case of apparent illogicality where A is convicted of conspiring with B but B is acquitted of conspiring with A. This case is one where there was an established conspiracy, Johnston and Bradbury had been acquitted of being party to it, and the question for the jury at the retrial was whether James was a party to it. As James admitted (see para 13 above): “between the dates on the indictment there existed a conspiracy to defraud the lending institutions in the terms set out in the indictment…This conspiracy was between at least Guy Lucas and Paul Wilson Keeler.” There could be nothing illogical or inconsistent or inexplicable therefore in James being found to be party to such a conspiracy. The submission under consideration therefore on analysis becomes not that James’ conviction is inconsistent, but that the acquittals at the first trial were surprising, given the existence of a conspiracy and the close involvement of Johnston and Bradbury in the affairs of Harrovian. That however is not a matter for this court.
40. In any event, we do not accept the factual premise of Mr Trollope’s submission, which was that there was no material difference in the quality of the evidence against Johnston and Bradbury and against James respectively. The strength of the evidence against Johnston and Bradbury was that they were the principals of Harrovian, knowledgeable in general about its affairs, and the real beneficiaries of the fraud. However, the weakness of the evidence against them was that because they operated at the level of principals rather than that of administrators they were more distant from the critical dealings with the banks and other lenders. Moreover, they did not have the evidence of Keeler against them. The weakness of the evidence against James, on the other hand, was that, save in the sense that Harrovian provided him with his employment, he was not a personal beneficiary of the lending; but the strength of it was that he participated, subject to his explanations of innocence, in the transactions under investigation. Moreover, he did have Keeler’s evidence against him (the subject matter of the second issue, below). In such circumstances, we do not consider that a “both guilty or both not guilty” direction represents the correct analogy.
41. As for Brewer and Jones, that was a case which did not turn on the peculiar difficulties of conspiracy, but demonstrated the more general problem which might arise in many trials according to their own logic where the guilt of one defendant is really a condition precedent to the guilt of all. The same might happen as between different counts against a single defendant, where, because of the internal logic of the trial, guilt on one count is a condition precedent for guilt on any or some other count. It was common ground on the evidence that Jittlar was in the van of the others: if he attacked the prisoner, that was consistent with the prosecution case; but if he merely responded to an attack on him by the prisoner, then the prosecution case against all four defendants collapsed. Where, therefore, the jury were uncertain as to his guilt, they could not be in a position to convict the others. In the present case, however, the participation of Johnston and Bradbury was not a condition precedent to the participation of others.

The use of Keeler’s evidence by the prosecution

42. The second ground of this appeal is that it was unfair to allow Keeler to give evidence against James without giving full disclosure of privileged material.
43. At the beginning of the retrial Mr Trollope applied unsuccessfully to the judge on behalf of James to exclude Keeler’s evidence under section 78 of the Police and Criminal Evidence Act 1984 on two bases: first, that having maintained his innocence throughout the first trial but having been convicted Keeler could not be treated as a credible witness; and secondly, that it was unfair to permit him to give evidence while refusing to waive privilege. Those two bases are raised again on this appeal. Mr Trollope submits that the judge was wrong not to exclude Keeler’s evidence, and that as a result James’ conviction is unsafe.
44. Mr Trollope puts his submission in the following way. A witness who maintains his innocence at one trial and is then convicted cannot be treated thereafter as a credible witness at a later trial. A fortiori where he is yet to be sentenced. The only way in which his credibility can conceivably be checked is if he makes full disclosure of all material, including any privileged material. Without such disclosure, the prosecution cannot be properly satisfied, as they have to be, that he is a credible witness whom they can call as a witness of truth; and the defence is unable to cross-examine him adequately on his volte-face.
45. Mr Trollope relied on R v. Russell-Jones [1995] 1 Cr App R 538, where Kennedy LJ set out the principles which emerge from the authorities and from rules of practice regarding the calling of witnesses by the Crown. He said (at 544/5) –

“(2) The prosecution enjoy a discretion whether to call, or tender, any witness it requires to attend, but the discretion is not unfettered.

(3) The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial…

“The dictum of Lord Thankerton in the Palestine case [Adel Muhammed El-Dabbah v. Attorney General for Palestine [1944] AC 156] “the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive” does not mean that the Court will only interfere if the prosecutor has acted out of malice; it means that the prosecutor must call his mind to his overall duty of fairness, as a minister of justice…

“(6) The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief…

“…There may be special situations to which we have not adverted; and in every case, it is important to emphasise, the judgment to be made is primarily that of the prosecutor, and, in general, the court will only interfere with it if he has gone wrong in principle.”

46. Mr Trollope also relied on the decision of Mr Latham QC, the prosecutor in R v. Perry (CACD, unreported, 29 June 1994), to the effect that he was unwilling to call as a witness a co-defendant who had pleaded guilty, one of three charged with conspiracy, in circumstances where the trial judge had turned down an application by the remaining two co-defendants for disclosure of his solicitor’s file. As it turned out, the judge directed the prosecutor to call the witness when the remaining co-defendants said that the case should not proceed without his evidence. Mr Trollope said that Mr Latham’s decision, prior to that application, illustrated the correct attitude. He also submitted that a further difficulty about Keeler’s evidence was that it would be very confusing for the jury in circumstances where the prosecution itself accepted the acquittals of Johnston and Bradbury, but was relying on the conviction of Keeler and his evidence.
47. In our judgment, however, there was nothing unfair about the Crown’s decision to call Keeler as a witness. Despite his earlier case of innocence, the prosecution was entitled to regard him, following his conviction, as a credible witness of truth. The prosecution had a wealth of material against which to form the judgment as to his credibility. It is impossible for this court to say that the prosecution erred in principle in not rejecting him as incredible or that the judge erred in principle in declining to interfere with the prosecution’s discretion. We have in mind the comments of Kennedy LJ in Russell-Jones which emphasise the scope which will be allowed to the prosecutor in resolving such decisions. As for the fact that Keeler had not yet been sentenced, the defence was able to explore the consequences of that fact in cross-examination, and the judge gave to the jury a clear and forceful direction of the danger of accepting his evidence without independent verification (see para 28 above).
48. Moreover, we do not think that the defence was placed at any real disadvantage in not being able to obtain Keeler’s privileged documents. As the judge pointed out, the jury would know well enough the circumstances in which Keeler came to stand before them, to enable them to weigh the truthfulness and accuracy of what he had to tell them about James. Moreover, Mr Trollope had available to him, to assist the jury in that judgment, not only the fact of Keeler’s not guilty pleas at the first trial, but also his defence case, and the positive assertions put on his behalf by counsel at the first trial both in cross-examination and in his final speech. Mr Trollope was able to put all this to good use in cross-examining Keeler, as he did for three days.
49. We also think that R v. Perry is ultimately a case which does not assist Mr Trollope. The judge in that case was criticised in Perry’s appeal for having required the disputed witness to be called in the absence of disclosure of privileged material. But this court did not accept those criticisms. Evans LJ said (at pp 33/34 of the transcript):

“But the essential issue raised by the submission is whether as a general rule the prosecution should not proceed under any indictment or call any witness in support of an indictment unless it can produce to the defendants, and if necessary obtain from a third party such as the proposed witness’s solicitors, all documents which may be relevant to the evidence he would give or to his credit-worthiness generally.

“We cannot accept that any such general rule exists. The implications if it did so would be widespread and astonishing. We consider that, at most, the Court might have a discretion to direct the prosecution not to call a witness, or to exclude part of a witness’s evidence, when relevant or potentially relevant documents could not be made available to the defence, without fault or responsibility on their part. It is not necessary for us to rule on the issue in the present case…”

50. In sum, we reject this second ground of appeal.

Delay

51. We turn finally to the third of the grounds of appeal, which is that there has been such unreasonable delay in bringing James’ prosecution to a conclusion that there has been a breach of article 6(1) of the Convention in as much as it requires a “criminal charge” to be determined at a public hearing “within a reasonable time”. Article 6(1) provides that –

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”

52. For the purpose of this ground we need to set out further facts relating to the chronology of these proceedings. We will seek to condense a much fuller account which appears in reasons given on 10 January 2000 by HH Judge John Samuels QC for his ruling, made on 23 December 1999, that the Harrovian Leisure indictment should be stayed on the ground inter alia that there would be a prospective breach of article 6(1) if those proceedings continued.
53. It will be recalled that the time span of the conspiracy alleged against James went down to 31 August 1990. On 3 April 1991 Lucas went unannounced to the police at their Company Fraud Department and indicated his wish to make admissions about his activities. An article appeared in a national Sunday newspaper on 7 May 1991 to the effect that the police were looking into deals involving Harrovian. On 19 November 1991 Harrovian was compulsorily wound up. Investigations continued, and on 24 February 1993 Johnston and Bradbury were invited to attend for interview, and did so attend on 14 April 1993. James attended for interview on 12 August 1993. On 7 April 1994 Johnston and Bradbury, and on 8 April James, were arrested and charged. Mr Trollope submits that the process which under article 6(1) has to be completed within a reasonable time began, as Judge Samuels found it did, at latest in November 1991 with the winding-up of Harrovian on the ground that each of the defendants to the Harrrovian Leisure indictment was “substantially affected” by the criminal proceedings by then. Mr Rook QC (who did not appear below), on the other hand submits that the article 6(1) period only started with the arrest and charge of James on 8 April 1994.
54. On 5 July 1995 the proceedings were transferred from the magistrates at Bow Street to the Crown Court under the provisions of the Criminal Justice Act 1987. Applications came before Judge Beaumont at the Central Criminal Court on 11 December 1995. The first preparatory hearing occurred on 17 June 1996. As a result the counts dealing with the alleged Properties conspiracy and the alleged Leisure conspiracy were severed into two separate trials. Target dates of Easter and September 1997 were set for the two trials respectively, but the dates slipped. The first trial of the Properties conspiracy in fact commenced on 14 July 1997. At the outset Lucas pleaded guilty on both conspiracies. That trial concluded on 13 March 1998.
55. During the course of the first trial a further preparatory hearing took place at which it was decided to fix Campbell’s trial for 14 September 1998 and the Leisure trial for 16 November 1998. At the time of that hearing, of course, it was not known that there would be any need for a retrial of James on the Properties indictment. He was also a defendant to the Leisure indictment. When, at the conclusion of the Properties trial it emerged that there would need to be a retrial of James, there was no request on his behalf that his retrial should proceed immediately so as to take precedence over what had by then become the Campbell trial and Leisure trial fixtures.
56. Campbell’s trial took place on time and he was convicted. The Leisure trial also got under way on the date fixed, but it began with an application on behalf of the defendants, including James, Johnston and Bradbury, to stay the indictment on the ground of abuse of process along similar lines to those later canvassed successfully before Judge Samuels. On that earlier occasion, however, the application failed. When, however, in December 1998 leave was granted by the High Court to challenge the ruling of Judge Beaumont by way of judicial review, he decided to adjourn the Leisure trial, in effect to abandon it; and as a result the retrial of James on the Properties indictment was fixed to start on 1 March 1999.
57. As it happened, the Divisional Court decided on 12 January 1999 that it lacked jurisdiction to review Judge Beaumont’s ruling on abuse of process.
58. On 13 January 1999 Keeler was re-arraigned and he pleaded guilty to the conspiracy alleged against him on the Leisure indictment. It was then that he offered to give evidence for the Crown, evidence that was used at James’ retrial.
59. On 22 February 1999, in the light of the Divisional Court’s decision, the Leisure trial was fixed to start again on 15 November 1999. It was decided to use the interim to try not only James’ retrial, but also the O’Sheas, the Milsoms and the Najeras.
60. James’ retrial began on 15 March 1999, two weeks later than the fixture date of 1 March. Thus it started almost exactly one year after the end of his first trial. The interim had been taken up with the Campbell trial and what had proved to be the abortive Leisure trial. As soon as that was abandoned, James’ retrial was fixed for March 1999. There was at no time any application to the court on James’ behalf that his retrial should be stayed because it had become too late or unfair for it to be heard. And in the meantime James had gone along with the timetable whereby the Campbell trial and the Leisure trial would take precedence over his retrial.
61. On 4 June 1999 Judge Beaumont heard and declined applications to stay the indictments against the O’Sheas, the Milsoms and the Najeras for abuse of process, and on 14 June 1999 he gave his reasons for refusing those applications. On 5 July 1999 Mrs O’Shea pleaded guilty, and on 2 and 3 September her two sisters, Mrs Milsom and Mrs Najera, did the same. The Crown was content not to proceed against their respective husbands. Those pleas were in respect of substantive (not conspiracy) charges concerned with properties which they had applied to mortgage.
62. On 15 November 1999, the day fixed for the restart of the Leisure trial, Judge Samuels, who had replaced Judge Beaumont, began to hear lengthy submissions on behalf of the defendants on their renewed applications to stay that indictment on grounds very similar to those which Judge Beaumont had considered almost exactly a ear earlier in November 1998. On 23 December 1999 Judge Samuels did stay those proceedings, and his reasons were delivered on 10 January 2000. In the event, on 4 October 2000 Judge Samuels removed the stay and ruled the Crown’s evidence all inadmissible under section 78 of the Police and Criminal Evidence Act 1984, whereupon the Crown offered no evidence and not guilty verdicts were entered.
63. We have set out the whole of this chronology, including as it does the history of the Leisure trial, partly because that history is to some extent intertwined with that of the Properties trial and James’ retrial, and partly because on behalf of James Mr Trollope relies on the reasoning of Judge Samuels’ decision to stay the Leisure indictment. Thus Judge Samuels held, as we have mentioned above, that the commencement of the relevant period for the purposes of article 6(1) was at latest November 1991 and that by at any rate November 1999, with the prospect that any appeal from the Leisure trial would not be concluded until Easter 2001, there had been a prospective breach of article 6(1). He said:

“10.9.3 Hence the overall period in respect of which criminal charges should be determined is in the region of ten and half years. That time span so far exceeds my perception of what ought to be the timetable for the determination of a complex fraud within this jurisdiction that objectively it cannot be regarded as a reasonable time.”

64. To put that conclusion in context, Judge Samuels also found that the allegations at issue in the prospective Leisure trial arose out of substantially the same facts as the allegations which had been the subject-matter of the Properties trial (at para 7) and thus that “the essential criminality” of Johnson, Bradbury and James had already been before the jury in the first trial (at para 10.6).
65. Mr Trollope was unable to say that James had by reason of delay suffered any prejudice in terms of the fair conduct of the retrial; but he was able to point to Judge Samuels’ findings of personal hardship (at para 8.4.7.2) to the following effect:

“Mr James has been awaiting sentence since 12 May 1999. While I express no view as to his probable sentence, the postponement of sentence in his case, following so prolonged a delay in bringing to a conclusion events with which he was concerned in the period August 1989 to May 1991 is almost a punishment in itself. Since the publication in his local newspaper of the result of committal proceedings in October 1994 he has been largely shunned in his own community. Recent medical evidence from the James’ family doctor reports that not only Mr James but also his wife have displayed the physical and psychological sequelae of chronic stress unhappily to be expected; and I was told that subsequent to that recent report the health of Mrs James has significantly deteriorated.”

The case, Mr Trollope observes, has occupied ten years of James’ life.

66. On 29 November 2001 this court gave judgment in Mrs Najera’s appeal against conviction: R v. Najera [2001] EWCA Crim 2621. It will be recalled that she had pleaded guilty on 3 September 1999. She was sentenced to nine months imprisonment suspended for eighteen months, just like her two sisters. One of the grounds raised on her appeal was that Judge Beaumont ought not to have refused her application to stay the proceedings against her (see para 61 above). Under this ground Mrs Najera raised two points. One was that the reversal whereby her trial preceded the Leisure trial, despite the original order, whereby her trial was to follow, was an abuse of process. As to that, Kay LJ, giving the judgment of this court, said this:

“24. We are quite satisfied that this contention is wholly without merit. Complex fraud on this scale presents very difficult case management problems for the courts. From their very nature, such trials take a long time to complete. Where, therefore, a very large potential trial can sensibly be split into elements likely to be more readily comprehensible from a jury’s point of view, decisions have to be made as to the order in which such trials should proceed. A decision on such matters can, however, never be thought to be a binding and unalterable decision if the circumstances change. The court is under the obligation, recognised in the second limb of this ground, to ensure that all matters are dealt with with the minimum of delay consistent with the doing of justice in the particular case and having regard to the overall burden of the courts and the needs of other cases.

“25. The original decision that the two Harrovian Group trials should proceed first was clearly one that satisfied these differing requirements. Since, for good reasons, the same judge was to hear all aspects of the matter, this necessarily meant that the appellant’s trial would be delayed. The appellant was not merely content with this arrangement but it appears saw it as being to her advantage.”

67. The second point was that the delay to Mrs Najera’s trial was in itself inordinate and that to proceed was an abuse of process. Kay LJ pointed out that Mrs Najera’s willingness to postpone her trial until after the Leisure trial was again relevant, and that the law prior to the Human Rights Act 1998 came into force was that stated by Lord Lane CJ in Attorney General’s Reference No 1 of 1990 [1992] QB 630 at 644, thus:

“…no stay should be imposed unless the Defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words that the continuance of the prosecution amounts to the misuse of the process of the court.”

68. The position under article 6(1) has since that time been considered in Attorney General’s Reference (No 2 of 2001) [2001] 1 WLR 1869, and Kay LJ went on to cite extensively from that decision. The effect of that citation can be summed up in the following passages from the judgment of Lord Woolf CJ:

“20…It seems to us in general that the approach that previously existed as to the provision of the remedy of staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of the process of the courts…But there are many other actions which the court can take which avoid the need for such action. In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time requirements in Article 6(1) and acknowledge the rights of the defendant by so doing…It can, for example, take account of the failure to proceed with the case with due expedition in the sentence which the court imposes…

“21…there is no authority which supports the conclusion that a stay is the appropriate remedy, except in limited circumstances where it is no longer possible for a defendant to have a fair trial, bearing in mind the ability of the court to exclude evidence or to take other action to achieve a fair trial. If a fair trial is not possible, then a stay would have to be imposed. Equally it would be appropriate to stay proceedings if the situation is one where it could be said that to try the accused would in itself be unfair.

“23…As we have already indicated, if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is the appropriate remedy. But in the absence of prejudice of that sort, there is normally no justification for granting a stay.”

69. Kay LJ therefore concluded the issue in the case of Mrs Najera’s appeal as follows:

“31. Thus the court is satisfied in the circumstances of this case the relevant question both before and after the coming into force of the Human Rights Act 1998 was whether a fair trial was still possible.

“32. There had been substantial delay in this case. That delay was to a large extent a necessary consequence of the splitting of the allegations into separate trials. There were additionally other factors that handicapped the prosecution from proceeding with greater speed…However, the judge could find no proper basis for concluding that a fair trial of these issues was not possible…Nothing that was urged before the judge nor before us persuades us that the situation had been reached where a fair trial was no longer possible. Accordingly, we are satisfied that the judge was right to refuse the application for a stay. Clearly the delay was an important factor in sentence as envisaged by Lord Woolf in the passage to which we have referred but it is equally clear that the judge gave great weight to that factor in deciding that the sentences of imprisonment should be suspended. In so far as there may, therefore, have been a breach of the appellant’s Article 6(1) rights, a sufficient and appropriate remedy was provided.”

70. The Najera case raised the question whether an application for a stay of proceedings on the ground of abuse of process should have been granted. It was in that context that the question whether there had been a violation of the “reasonable time” requirements of article 6(1) arose. Moreover, the passages cited by Kay LJ in Najera from Lord Woolf’s judgment in Attorney General’s Reference (No 2 of 2001) were directed not to the question of whether there had a breach of article 6(1) but as to the appropriate remedy if there had been such a breach. In the present case there was no application for a stay of proceedings, and the first question is the prior one of whether there has been a breach of the reasonable time requirements of article 6(1).
71. We would accept that that question is separate from the question of whether a defendant has had a fair trial. The fact therefore that delay has caused no prejudice to the fairness of James’ retrial does not in itself mean that the separate requirement of a hearing within a reasonable time has not been violated. We would also accept that the corollary decided by Attorney General’s Reference (No 2 of 2001), namely that a violation of the reasonable time requirement does not necessarily mean that a conviction must be regarded as unsafe on the basis that the accused’s trial was unfair, has been regarded as controversial: see Webster “Delay and Article 6(1)” [2001] Crim LR 786, Ashworth “Criminal Proceedings After the Human Rights Act: The First Year” [2001] Crim LR 855 at 860/1. But it is binding on us.
72. A further point decided by this court in Attorney General’s Reference (No 2 of 2001) was that in general the word “charge” in article 6(1) corresponded to the sense in which that term is used in this jurisdiction (at para 10). However, Lord Woolf acknowledged that there would be situations where a broader approach was required to give full effect to the Convention rights (at paras 11/13). The Attorney General’s counsel was prepared to accept that it would be necessary for instance to recognise a period before formal charge when an accused has been substantially affected or materially prejudiced by the actions of the state linked to an investigation. However, Lord Woolf was not prepared to accept that in the ordinary way interrogation or interview amounted to a charge for these purposes. He cited Deweer v. Belgium (1980) 2 EHRR 439 where the public prosecutor ordered the provisional closure of the accused’s butcher shop on an allegation that he had committed an offence of selling meat at an illegal profit. The European Court said (at 440):

“(a) ‘Criminal charge’ is an ‘autonomous’ concept which must be understood within the meaning of the Convention. (b) The term has a ‘substantive’ rather than a ‘formal’ meaning. (c) On the facts, the court held the proceedings against the applicant had constituted a ‘criminal charge’ which could be defined as ‘the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’.”

The European Court added (at 459):

“In several decisions and opinions the Commission has adopted a test that appears to be fairly closely related, namely, whether ‘the situation of the [suspect] has been substantially affected’.”

73. Lord Woolf commented (at para 13):

“It was contended before the judge that there had taken place an interrogation of the defendants and it was said that this constituted the charge. We disagree with that view. In the ordinary way an interrogation or an interview of a suspect by itself does not amount to a charging of that suspect for the purpose of the reasonable time requirement in article 6(1). We do not consider that it would be helpful to seek to try and identify all the circumstances where it would be possible to say that a charging has taken place for the purpose of article 6(1), although there has been no formal charge. We feel that the approach indicated by the authority that we have cited clearly expresses the position and we are content to leave the matter in that way…”

74. In the circumstances we are doubtful whether Judge Samuels’ decision, which was rendered before this court’s judgment in Attorney General’s Reference (No 2 of 2001) was handed down, can be authoritative of the question when the “charge” was initiated, since Judge Samuels simply adopted a test of “substantially affected” (see paras 9.3 and 10.9.1) without reference at all to whether there had been special factors which should advance the time to a period earlier than that of formal charge. Nor has Mr Trollope advanced special factors why an earlier date should be taken, other than to rely on the approach of Judge Samuels. We observe that James did not attend for interview until 12 August 1993 and was formally arrested and charged on 8 April 1994. In the circumstances we do not think that a date earlier than 8 April 1994 should be adopted, and in any event, if we are wrong about that, none earlier than 12 August 1993. We see no reason why the windings-up of the Harrovian companies in November 1991 are of particular significance. This is quite unlike the state action taken in Deweer against the butcher in anticipation of later criminal proceedings, which Lord Woolf held out as an example of the exceptional situations which might arise to advance the date of a “charge” for the purposes of article 6(1).
75. The essential situation is therefore this. James was charged for the purposes of article 6(1) on 8 April 1994 (at earliest eight months before that). The matter was extremely complex, and case management decisions requiring trials to be split were taken, both as concerns defendants and as concerns subject-matter. James stood trial with other co-defendants in July 1997. There was at that time, some 3¼ or at most some 4 years from “charge”, no suggestion that trial had been unreasonably delayed. The length of that trial down to March 1998 reflects the complexity of the proceedings. Unfortunately for James the jury’s failure to agree on any verdict in his case meant that he had to stand retrial. At that point his retrial could have taken place within a short time, but decisions had already been made which meant that the Campbell trial and the Leisure trial would intervene. James did not protest to demand that his retrial should take precedence. In the event, his retrial did not take place until March 1999. There was no submission at that time of unreasonable delay. If the Leisure trial had gone its full length, James’ retrial would have been still further delayed – but it is of course possible that, whatever the outcome of the Leisure trial, there would have been no need for James to be retried on the Properties indictment. Mr Trollope submits, nevertheless, that a violation of article 6(1) had taken place already by March 1999, but we do not think that that is correct, and we are fortified in that view by the attitude of this court to the analogous submission made on behalf of Mrs Najera, who on any view was a less central figure than James in the affairs of Harrovian (see at para 66 above).
76. It is true that, on the basis of the ultimate decision of Judge Samuels in December 1999, it might be said that the Leisure trial turned out to be unnecessary to test the “ultimate criminality” of James, Johnston and Bradbury. But that lay in the future, and in any event before his retrial a jury had not yet determined James’ criminality.
77. It is also true that Strasbourg jurisdiction requires that the reasonable period within which a charge has to be determined includes both sentencing and appeal. James was sentenced on 11 February 2000, and his appeal against conviction is only now being finalised. Mr Trollope accepts that some of the delay since his application for leave to appeal his conviction was filed on 14 December 1999 has been due to timetabling to accommodate his own convenience. James’ sentence in any event had to await the outcome of the Leisure trial.
78. Mr Trollope referred to an observation of the European Court in Neumeister v. Austria (No 1) (1968) 1 EHR 91, where the applicant’s trial on a charge of tax fraud had yet to be completed at the time of the European Court’s judgment, seven years after charge. The Court said (at para 20) that such a period of seven years was “an exceptionally long period which in most cases should be considered as exceeding the reasonable time laid down in Article 6(1)”. We could all agree on that; but the Court went on to say that by reason of the exceptional complexity of the charge under consideration there had been no violation of the reasonable time provisions of article 6(1) in that case.
79. In this case, certainly one of great complexity, James was tried and, as unfortunately proved to be necessary, retried within 5 years and 1 month of his being charged (or 5 years and 9 months of his being interviewed). Even if there were times within this period when the investigation or prosecution proceeded less speedily than it should have done, and even bearing in mind that sentence and appeal had still to follow, we are unable to find that that there has been a violation of article 6(1) and certainly not one that can be characterised as inordinate or oppressive. In any event, the sentence that James received reflected the difficulties which these proceedings had caused for him over a lengthy period, and we have been informed, although Judge Beaumont’s sentencing remarks are not before us, that the judge took full account of such matters in suspending his sentence of eighteen months’ imprisonment. As in the case of Najera, we think that even if there had been any breach of James’ rights under article 6(1), a sufficient and appropriate remedy was provided. It could not be said that his conviction should be regarded as unsafe by reason of any such breach.

Conclusion

80. For all these reasons, it follows that this appeal against conviction must be dismissed.